UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2012] UKUT 7 (LC)

UTLC Case Number: LP/30/2010

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

RESTRICTIVE COVENANT – discharge – modification – proposed development of 10 flats to replace single house – whether covenants obsolete – changes to the character of the neighbourhood – whether similar covenants elsewhere on estate no longer enforceable – thin end of the wedge argument – reasonable user – whether public interest in the development proceeding – whether practical benefits of substantial value or advantage – section 84(1) of the Law of Property Act 1925 grounds (a), (aa) and (c) – application refused

 

 

IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE

LAW OF PROPERTY ACT 1925

 

 

BY

 

LYNNE VALERIE KING

Re: 64 Buxton Road,

Weymouth ,

Dorset,

DT4 9PS

 

Before: A J Trott FRICS

 

 

Sitting at: Weymouth Magistrates Court, The Law Courts,

Westway Road, Weymouth, Dorset, DT4 8BS

on 13-15 September 2011

 

Daniel Bromilow, instructed by Preston Redman, for the applicant

Justin Shale, instructed by Thorne & Co, for the objectors.

 

 

The following cases are referred to in this decision:

Re Truman, Hanbury, Buxton and Co Ltd’s Application [1956] 1 QB 261

Crest Nicholson Residential (South) Ltd v McAllister (CA) [2004] 1 WLR 2409

Chatsworth’s Estates Company v Fewell [1931] Ch 224

Re Fairclough Homes Limited’s Application [2004] Lands Tribunal LP/30/2001 (unreported)

Re Willis’s Application [1998] 76 P&CR 97

Re Zopat Developments’ Application [1967] 18 P&CR 156

Re Coles’ Application [2004] Lands Tribunal LP/2/2003 (unreported)

Shephard v Turner [2006] EWCA Civ 8

Re Bass Ltd’s Application (1973) 26 P&CR 156

Re Collins’ Application (1975) 30 P&CR 527

The following further cases were referred to in argument:

Re Ghey and Galton’s Application [1957] 3 All ER 164

Re Havering College of Further and Higher Education’s Application Lands Tribunal LP/89/2004 (unreported)

Re Pryor’s Application [2009] UKUT 131 (LC)

Re Martin’s Application (1988) 57 P&CR 119

Re Zenios’ Application [2010] UKUT 260 (LC)

Re Diggens’ Application [2000] 3 EGLR 87

Re Vertical Properties Ltd’s Application [2010] UKUT 51 (LC)

Re Duffield’s Application [2007] Lands Tribunal LP/36/2006 (unreported)

Re Sheehy’s Application (1991) 63 P&CR 95

Bell v Norman C Ashton Ltd (1956) 7 P&CR 359

Re Woodhouse’s Application [2010] UKUT 235 (LC)

Margerison v Bates [2008] EWHC 1211 (Ch)

Re Mitman-Kearey’s Application [2007] Lands Tribunal LP/86/2006 (unreported)

Re Gossip’s Application (1972) 25 P&CR 215

Crest Nicholson Residential (South) Ltd v McAllister [2003] 1 All ER 46

Re GPB Construction Ltd’s Application [2009] Lands Tribunal LP/56/2007 (unreported)

Re Chapman’s Application (1981) 42 P&CR 114

Re Nichols’ Application [1997] 1 EGLR 144

Duffield v Gandy [2008] EWCA Civ 379

 

 

 

 

 

DECISION

Introduction

1.               The applicant, Mrs Lynne Valerie King, owns the freehold of 64 Buxton Road , Weymouth, Dorset DT4 9PS (the application land) a detached house set in large grounds.  The applicant wishes to demolish the existing house and replace it with a block of 10 flats designed as a Georgian mansion.  Outline planning permission for the proposed flats was granted on appeal on 27 April 2006.  Approval of the reserved matters was granted on 2 June 2009, with further approval of details being granted on 3 November 2009 and 23 February 2010.

2.               On 4 November 1927 the owner of Belfield House conveyed the application land.  The purchaser under the conveyance covenanted:

“…to the intent and so as to bind (so far as practicable) the property hereby assured into whosoever hands the same may come and to benefit and protect the remaining parts of the Belfield House Estate… will at all times hereafter observe and perform the stipulations and regulations in relation to the property hereby assured which are contained in the First Schedule hereto.”

The First Schedule contained several restrictive covenants.  Insofar as relevant to the current application these covenants are as follows:

“3.  One house only at a cost of £1,400 shall be erected on the property coloured red [the application land] (such cost to be exclusive of any garage, stabling and outbuildings).  No building or erection (temporary or otherwise) shall be erected within 60 feet of the said boundaries of the property coloured red and marked T on the said plan.

 4.  No house or building shall be erected on the property unless the site plans and elevations thereof shall have been previously submitted to and approved in writing by the Vendor but such approval shall not be withheld unless the erection of such house or building shall have the effect of materially obstructing views now enjoyed from other parts of the Vendor’s Belfield House Estate or lessening the amenity thereof by being unsightly or inappropriate to the site either in respect of position, size or value.  A reasonable fee not exceeding £2:2:0 shall on each occasion be made to the Vendor to cover her expenses of approval of plans and elevations.

5         No house shall be let out in separate tenements or as flats.

6. No house or building erected on the property shall at any time hereafter be used for any other purpose than a private dwelling house or the garage, stabling or outbuildings belonging thereto and no trade, manufacture or business of any kind (except that of a surgeon or physician) shall at any time be set up or carried on in or upon the property.”

3.               The applicant made an application under Section 84 of the Law of Property Act 1925 on 1 July 2010 seeking the discharge of covenant 5 and the modification of covenants 3, 4 and 6, on grounds, (a), (aa) and (c) of Section 84(1) of the Law of Property Act 1925.

4.               There are four objectors to the application: Mr Colin Grove and Ms Janet Biggs, the owners of Belfield House, 15 Belfield Park Avenue, and Mr Peter Knight and Mrs Christine Knight, the owners of 6 Belfield Park Drive. 

5.               The parties agreed that covenant 4, which requires the prior approval of the vendor in person under the 1927 conveyance to the plans and elevations of any proposed house or building, is spent because it is overwhelmingly likely that the vendor, Mrs Leith-Nelson, is now dead.  (At the date of the hearing she would have been 136 years old.)  The objectors did not argue that the approval was not confined to the vendor or that, following her death, the covenant became absolute.

6.               The objectors, while opposing the applicant’s proposals, said that they were prepared to agree a modification to restriction 3 to provide for the building of two suitably designed detached single houses each no higher than two storeys and each to be erected no closer than 15 metres from the boundaries with the objectors’ properties.

7.               Mr Daniel Bromilow of counsel appeared for the applicant and called Andrew John Patrick RIBA, MRTPI a director of Pro Vision Planning and Design and Geoffrey David Bevans FRICS, a sole practitioner, as expert architectural/planning and valuation witnesses respectively.

8.               Mr Justin Shale of counsel appeared for the objectors and called Arthur Colin Bowden FRICS of Dickson Bowden Survey Limited as an expert valuation witness, and Colin Richard Grove and Peter Joseph Knight as witnesses of fact.  Janet Mary Biggs and Christine Elizabeth Knight produced witness statements in support of Mr Grove and Mr Knight respectively but were not called to give oral evidence.

9.               Stephen Edwin Phillips, the principal of Hartwood Arboricultural Consultants, was appointed by the parties as a single joint expert.  He produced an expert report dated 26 May 2011 and answered written questions from the objectors’ solicitors on 30 June 2011.  He was not called to give evidence.

10.            I made an accompanied inspection of the application site on 13 September 2011.  I also viewed the application land from inside Belfield House and 6 Belfield Park Drive and from their gardens.

Facts

11.            I find the following facts from the statement of agreed facts, the evidence and my site inspection. 

12.            The application land is located some 2 km south west of Weymouth town centre and approximately 1 km to the north west of Portland Harbour. Both the application land and the objectors’ properties are located on what was once known as the Belfield House Estate, the extent of which is agreed between the parties.  The Belfield House Estate formed part of a larger area known as Belfield Park.  This extended approximately 120 metres to the west of the Belfield House Estate and some 450 metres to the east, to what is now Cross Road.  The northern boundary of the park was Wyke Road and its southern boundary was Buxton Road.

13.            The application land measures approximately 0.5 hectares and is located in Buxton Road (the main road from Weymouth to Portland) immediately north of its junction with Rylands Lane and some 65 metres west of its junction with Belfield Park Avenue.  The existing house is located to the north of the site and is a mainly two-storey, flat roofed building of modernist design which has been extended to the north east by a single-storey indoor swimming pool. There is a small third-storey extension housing a stairway and door leading to a former roof terrace.  Some of the building is set below ground level (by up to 1.3 metres) behind a perimeter retaining wall.  There is a separate garage approximately 15m to the west of the house.  Vehicular access to Buxton Road is from a driveway that runs adjacent to the western boundary of the site.

14.            The view of the existing building is screened from the objectors’ properties by well established vegetation including mature trees.  Most of the vegetation along the boundary with 6 Belfield Park Drive is on the application land while that along the boundary with Belfield House is shared between the two properties. A large, mature yew tree in the grounds of Belfield House also screens the view of the application land.

15.            It is proposed to construct 10 flats on the application land.  These would be contained within a building designed as a Georgian mansion and which gives the visual impression of being a single dwelling.  The proposed building closely follows the footprint of the existing building. It has a smaller footprint (383 m² compared to 436 m²) but it is considerably taller, being five storeys, including a basement level used as an underground car park for 10 cars.  The proposed building is just over 15 metres tall from ground level to the height of the pediments on the north and south elevations and 14.26 metres from ground level to the ridge height along the west and east elevations. There would be three 3 bedroom flats on each of the ground, first and second floors with a 4 bedroom penthouse on the third floor.  The proposed building would be marginally closer than the existing house to the boundary with Belfield House and marginally further away from the boundary with 6 Belfield Park Drive (due to the removal of a wing of the existing house).  The entrance ramp to the underground car park is on the south west elevation, on the opposite side of the building to Belfield House.  The entrance to the block of flats is at the centre of the north west elevation, 13m from the boundary with 6 Belfield Park Drive.  There would also be a vehicular turning circle close to this boundary and two surface car parking spaces for visitor use.  The existing garage would be retained as a bin store and the vehicular entrance to the site would be moved towards the centre of the frontage to Buxton Road.  

16.            Shortly before the hearing the applicant made a proposal to replace part of the existing tree screen along the boundary of the application land with 6 Belfield Park Drive with 8 semi mature (12m high) Leylandii trees, the estimated cost of which was approximately £50,000.

17.            Belfield House is located to the north east of, and below, the application land with which it shares a boundary of some 23 metres.  It is a Georgian country house built circa 1775 and is a grade II* listed building with both exterior and internal features.  Originally set in its own grounds these were sold off from the late 1920s onwards for residential development.  At its closest point the proposed development would be approximately 9.5m from the boundary with Belfield House and 55m from the house. 

18.            6 Belfield Park Drive is located to the north of the application land and on higher ground.  Its southern elevation looks directly towards the application land with which it shares a boundary of just over 40 metres.  6 Belfield Park Drive is a 4 bedroom, two storey house that was built in the 1930s.  The principal rooms, including three of the bedrooms (one with a sundeck), overlook the rear garden to the south and would therefore face the proposed new building. At its closest point the proposed development would be 9m from the boundary with No.6 and 41m from the house.

19.            Between the application land and Belfield Park Avenue, immediately south of Belfield House, is a pre war detached house known as “May Molly” (19 Belfield Park Avenue) and two post war detached houses.  Opposite Belfield House is Buxton Close a 1960s development of detached chalet style houses.

The evidence of the single joint arboricultural expert

20.            Mr Phillips stated in his expert report that his instructions were to adduce a preliminary arboricultural method statement, together with accompanying appendices and tree survey, that he had prepared for the applicant on 23 March 2009 and updated on 11 May 2011.

21.            The report identified 8 trees that would be lost as a direct result of the proposed development.  None of these was on or close to the boundaries with Belfield House and 6 Belfield Park Drive.  It was also proposed to remove a number of other trees even though these were not directly affected by the proposal.  One such tree (a dead elm) was shown on the plan as to be removed from the boundary between the application land and Belfield House.

22.            It was proposed to plant 25 new trees but all of these were located at or near the frontage with Buxton Road and away from the objectors’ boundaries.

23.            The survey identified five trees and a hedge along the boundary between the application land and Belfield House.  In addition another tree, a mature Monterey Cyprus, is located at the joint boundary of all three properties.  Three of the six trees identified were acknowledged to be in the grounds of Belfield House.  Mr Phillips applied the categories and classifications contained in BS5837: Trees in Relation to Construction.  Three of the trees and the Leylandii hedge were placed in category C, being trees of low quality and value.  Two of the trees, including the Monterey Cyprus along the joint boundary, were placed in category B, being trees of moderate quality and value.  One tree, a beech located in the garden of Belfield House, was placed in category A1, being a tree of high quality and value and a particularly good example of the species.  Two of the trees were in good physiological condition, three were fair (including the Monterey Cyprus) and one was poor.  The condition of the hedge was not categorised.

24.            Nine trees (excluding the Monterey Cyprus considered above) and a hedge were identified along the boundary between the application land and 6 Belfield Park Drive.  One of the trees was located within the garden of No. 6.  Eight of the trees and the (mixed) hedge were placed in category C.  A sycamore was placed into category R in the 2011 survey, being a tree of very poor form and partially suppressed by, and affected by works to, the Monterey Cyprus at the junction of the three boundaries.  This sycamore was unsuitable for retention.  Only one of the trees, a willow, had a life expectancy of more than 20 years.  This tree was the only one identified to be in good condition.  One tree was in fair condition while the remaining seven trees were said to be poor.

25.            Mr Phillips explained that the significance of the information about the condition of the trees should not be overstated.  He said that the categorisation of the trees as A, B, C or R was a better indicator of which trees were more likely to be kept or removed. 

26.            Mr Phillips identified the position of a line of temporary protective fencing which would protect the retained trees during the proposed development.  He described this as a line of “best fit” which, while enclosing all of the root protection areas of the trees to be retained, would minimise the length of fencing to be erected.

27.            The crowns of some of the trees along the boundary with 6 Belfield Park Drive overhung a special protection area relating to the new access where special design measures were required.  Mr Phillips said that facilitation pruning might be necessary to allow adequate clearance beneath the crowns for construction works to take place.  He noted that all of the trees on the application land were protected as Area A1 of the Weymouth and Portland Borough Council (Belfield Park Area) Tree Preservation Order 2006.  The consent of the local planning authority would therefore be required for any such pruning works.

28.             Mr Phillips said that the inspector who allowed the planning appeal for the proposed development in April 2006 had referred to a tree survey that was undertaken in accordance with the previous (1991) version of BS5837.  That showed the minimum distance for the protective fence as being 8 metres from several of the trees along the boundary with 6 Belfield Park Drive.  The current (2005) version of that standard showed greater distances ranging from 9 metres to 12 metres for those same trees.  He said this might explain why the inspector had allowed the new building to be cited marginally within the root protection area of some of those trees.

The case for the applicant

Evidence

29.            Mr Patrick considered firstly whether the restrictive covenants were obsolete by reason of changes in the character of the property or the neighbourhood (ground (a) of the 1925 Act).  He provided a detailed historical analysis of the development of Belfield House and Belfield Park from the 1770s to the present.  This included extracts from a series of Ordnance Survey plans dating back to the mid 1850s.  He also adduced an anonymous memoire of a lady, identified by her initials as “EAMS”, entitled “Childhood Memories of Belfield House 1945-1957”.  Finally he provided extracts from Kelly’s Street Directories for 1973 and 1974 which showed in both cases that Belfield House comprised the postal addresses of Nos. 15, 15a and 15b Belfield Park Avenue.  He related the information from the directories to a “snippet” at the end of the EAMS memoire which referred to the marketing of Belfield House by FPD Savills in June 2002, the description of which included reference to “two self-catering flats.”

30.            He concluded from these documents that in 1927 Belfield Park remained predominantly open parkland although some large plots had been sold for development as single dwellings, such as 64 Buxton Road and the site of May Molly, immediately to the east.  Since 1927 there had been a radical change in the character of the immediate locality.  Belfield House was now surrounded by suburban housing, including Buxton Close, Belfield Park Drive and, further to the west, Courtauld Drive.  There was now a purpose built block of flats at the corner of Cross Road and Wyke Road and new flats had been constructed immediately to the south of the application land on the opposite side of Buxton Road.  The site of May Molly had now been developed by three houses while 60 Buxton Road (known as South Belfield) had been converted into four dwellings.  Belfield House itself had also been used in part for flats.

31.            The extent of the Belfield House Estate (as agreed by the parties) had been identified from a plan accompanying an article in the Southern Times dated 29 April 1933.  Mr Patrick said that there was no evidence that the development of this land was envisaged in 1927 when the covenants were imposed on the application land.

32.            Mr Patrick concluded that the character of the locality had radically altered since 1927 and considered that the covenants could “no longer achieve the objective of preserving the character of the locality” as it then was.  It was anachronistic to preserve the application land as a plot for a single house.  That plot was larger than all other residential plots in the locality, including that of Belfield House.  He did not consider that the redevelopment of the application land as flats would adversely affect the Belfield House Estate.  He said the application land was not part of that estate, was screened from it by trees and would not take vehicular access through it.  The proposed development was very unlikely to set a precedent for the development of flats on the Belfield House Estate.  The principle of having flats on the Estate had already been established in any event, both at South Belfield and Belfield House.

33.            Mr Patrick then considered whether the covenants should be discharged or modified under section 84(1A)(b) of the 1925 Act, namely on the ground that by impeding a reasonable user of the application land the covenants were contrary to the public interest.  He identified two questions:

“Is it in the public interest to redevelop 64 Buxton Road to provide more residential units – maximising the use and potential of ‘brownfield land’?

If so, is the proposed block of flats a reasonable way to achieve this?”

34.            In answering the first of these questions Mr Patrick provided a comprehensive review and analysis of national, regional and local planning policy and guidance with particular emphasis on the development of previously developed land (brownfield land).  He concluded that national planning policy since 2000 placed an emphasis on increased housing provision, the redevelopment of brownfield land and, in a measured way, on higher densities.  His review of regional planning policy, structure planning policy, local plan policy and emerging local development framework policy showed an emphasis on the use of brownfield land in accordance with national Government policy.  He concluded that the use of the application land should be maximised because it was a brownfield site in a highly sustainable location within an existing urban area.  It was therefore acceptable in principle for the single house currently on the application land to be replaced by a greater number of dwellings.

35.            Mr Patrick said that the development of the application land in accordance with the planning permission for 10 flats would be the most reasonable use of the site, balancing the need for more dwelling units while preserving the maximum number of protected trees and maintaining the character of the immediate locality, by constructing a block with the appearance of a single large house containing flats which would be at the upper end of the market.  He concluded that, contrary to the public interest, the covenants would impede a reasonable user.

36.            Mr Patrick then considered whether the proposed discharge and modification of the covenants would injure the objectors (ground (c) of the 1925 Act).  He concluded that there would be no such injury.  There would not be an unacceptable impact on the residential amenities of the objectors, a view which was shared by both the planning inspector and the local planning authority.  From the results of his site visit, Mr Patrick said there was no “material line of sight” between Belfield House and the proposed building and that there would therefore be no overlooking of the former.  The new building would neither overshadow nor overbear Belfield House.  There were likely to be more people living in the new flats than in the existing house but all vehicular activity would be away from Belfield House.  Any increased activity in the grounds of the new flats was more likely to be to be south of the proposed building and therefore unlikely to cause any injury to the objectors.

37.            In considering whether the proposed development would injure the objectors at 6 Belfield Park Drive, Mr Patrick looked solely at covenant 4.  (In a supplementary report Mr Patrick, acknowledging that the objectors had accepted that covenant 4 had lapsed, felt that this part of his report “may not need to be considered”.  However, this evidence is relevant to the consideration of the application under ground (c) in respect of the other covenants.)  He said that the new building would not materially obstruct the view from No.6 because, since the covenant had been imposed, a mature tree screen had grown along the boundary.  The position of the proposed building was the same as that of the existing house and although the new building would be taller it was not unsightly or inappropriate.  The trees along the boundary between the application land and No. 6 were not as tall as the proposed building, but the buildings would be 41 metres apart, twice the normally accepted minimum distance between facing windows.  He concluded that the proposed development, if carried out in accordance with the detailed planning permission, “may not conflict with clause 4 of the covenant.”

38.            Mr Patrick also considered the possibility that the proposed building might introduce light pollution into the objectors’ properties.  He said that 6 Belfield Park Drive might “glimpse lit windows through the screening evergreens and also external lighting to the main pedestrian access.”  He acknowledged in cross-examination that the details of the external lighting had not yet been produced.  He thought that low level lighting rather than high level or security lighting would be more in keeping with the locality.

39.            Mr Patrick said that he had discussed the applicant’s proposal to replace the existing tree screen along the boundary of the application land with 6 Belfield Park Drive with 8 semi mature Leylandii trees with an independent arboriculturalist.  Having done so he considered the proposal to be “entirely feasible”.  He produced a photomontage of the view southwards from the sun deck of No.6 with the Leylandii in situ.

40.            In his supplementary expert report Mr Patrick considered two alternative forms of development.  Firstly, he considered whether, instead of a block of flats, it would be possible to build a single large house which would not conflict with any of the covenants.  Secondly, he considered the objectors’ concession that they would agree to two detached houses being built on the application land.

41.            Because of the protected trees the only place that could accommodate a single large house would be in that area of the site occupied by the existing house.  The local planning authority had confirmed in writing that a single very large house of the same footprint, height, width and depth as the proposed flats, with similar fenestration, would be acceptable.  Mr Patrick estimated that such a house would have a floor area of 555 m² (6,000 ft²).  The property would appeal to those wanting to combine a large modern house with harbour views in a spacious, wooded site.  The elevation facing No.6 would not be as wide as that proposed for the flats.

42.            Were the site to be developed by two houses Mr Patrick said that he would design houses which were tall but with a relatively small footprint so as to help separation of the buildings and take advantage of the views.  Each house would have a gross external area of between 300 to 360 m².  The height of the houses would be the same as that of the flats but with narrower and separated elevations.  Mr Patrick said that to build two houses would under utilise the site and might not be acceptable to the market given the need for them to share a driveway and to be located close to one another.

43.            Mr Bevans was instructed to consider firstly whether the covenants secured to the objectors practical benefits of substantial value or advantage (ground (a)) and, secondly, whether there would be any diminution in the value of the objectors’ properties or compensation for any other loss or disadvantage that the objectors might suffer.  He considered the potential impact upon the objectors’ properties in terms of four factors: light, views, noise and loss of privacy.

44.            Mr Bevans said that there was no issue regarding the loss of light to the objectors’ properties.  While there would be more dwellings in the proposed development than there were at present Mr Bevans did not think that there would be any increase in light pollution.  He said that, unlike the proposed development, the existing house on the application land had “a very large conservatory or glass-roofed area of accommodation to the southern elevation” which would give out considerable light at night.  The footprint of the new building was the same as the existing house and the illumination of external areas was unlikely to be greater than at present, although he was not aware of the proposed details of the exterior lighting.  While the new building would have more windows than the existing house, the stairwell would have obscure glazed windows (which Mr Bevans said would diffuse light) and most of the other windows would be in bedrooms where there was unlikely to be a sustained light source.  Any light would be considerably reduced and diffused by the existing tree screen.  Mr Bevans concluded that there would be no detrimental impact caused by light pollution.

45.            The existing tree screens would effectively protect the views from Belfield House and 6 Belfield Park Drive.  The proposed development would only be visible from the more southerly part of the garden of Belfield House which was not the primary amenity area.  In any event the main view from Belfield House was to the south east, away from the application land.

46.            Noise and disturbance were concerns because of the increased number of dwellings and a consequent increase in the number of vehicles.  Mr Bevans said that vehicular access to the application land would be from Buxton Road away from the objectors’ properties and visitors to the sight were unlikely to pass by them.  The comparison should be between the traffic generated by the proposed building and that from the two houses on the application land that the objectors had said would be acceptable.  Mr Bevans considered it likely that two houses would generate more noise and disturbance than the proposed flats because their gardens would be more intensively used.  It was his experience that flats tended to be occupied by either single people or childless couples who used communal gardens for quiet enjoyment.

47.            Loss of privacy referred to the possibility of the objectors’ properties being overlooked by the new development.  Mr Bevans acknowledged this possibility but in the case of 6 Belfield Park Drive he thought it would be remote due to the tree screen and the fact that the windows in the elevation facing No. 6 were bedroom windows.  The elevation of the proposed building that would face Belfield House had living areas that would overlook an area of its garden but Mr Bevans did not consider that this would be detrimental.

48.            Mr Bevans concluded that the covenants did not secure to the objectors any practical benefits of substantial value or advantage and that there would be no diminution in the value of their properties resulting from a release of the covenants and the development of the proposed flats.  He accepted that there would be some disturbance during construction but said:

“It is not my place to give an opinion as to what, if any, sums should be paid to compensate for such disturbance as ‘disturbance’ is a personal matter, not a marketable asset.”

49.            In a supplemental report Mr Bevans considered whether it would be financially viable for the applicant to construct a single large house on the application land rather than a block of 10 flats.  Based upon Mr Patrick’s evidence that such a house would have a gross external area of 555m² and using building costs provided by Mr Patrick’s firm, Mr Bevans estimated “in broad brush terms” that total costs would be £870,000.  As he considered that such a house would sell for in excess of this amount he concluded that such a development would be viable.

Submissions

50.            Mr Bromilow said that it had now been expressly agreed by the objectors that covenant 4 was spent.  That left three covenants which prevented the development of the application land in accordance with the planning permission that had been granted.  Covenants 5 and 6 effectively worked together to limit the development of the site as a single house and not as flats.  The first part of covenant 3, imposing a minimum cost for the construction of a new house, was no longer relevant.  The second part of that covenant prohibited development within 60 feet of the boundaries with the objectors’ properties.

51.             Turning to ground (a) Mr Bromilow said that the test of whether a covenant was obsolete was contained in Re Truman, Hanbury, Buxton and Co Ltd’s Application [1956] 1 QB 261 at 272 where Romer LJ said:

“It seems to me that if, as sometimes happens, the character of an estate as a whole or of a particular part of it gradually changes, the time may come when the purpose to which I have referred can no longer be achieved, for what was intended at first to be a residential area has become, either through express or tacit waiver of the covenants, substantially a commercial area.  When that time does come, it may be said that the covenants have become obsolete, because their original purpose can no longer be served and, in my opinion, it is in that sense that the word “obsolete” is used in section 84(1)(a).

… if the original object of the covenant can no longer be achieved, it is difficult to see how the covenant can be of value to anyone.”

Mr Bromilow submitted that the test was not to ask whether a covenant had become worthless or whether it was incapable of being performed.  Rather one should look at the original purpose of the covenant; if that could no longer be fulfilled on a practical level then the covenant was obsolete.

52.            In the present application the purpose of the covenants was to be found in paragraph [covenant] 4 of the First Schedule.  That purpose was to prevent any house or building being constructed which would have the effect of materially obstructing views now enjoyed from other parts of the vendor’s Belfield House Estate, or lessening the amenity thereof by being unsightly or inappropriate to the site either in respect of position, size or value.  The reference in that paragraph to “now” was to a time in 1927 when Belfield House stood in its own grounds in open countryside.  Today the Belfield House Estate was a built up suburb of Weymouth.

53.            The evidence showed that the Belfield House Estate had been developed on a series of smaller housing plots, and therefore at a much higher density, from 1933.  The evidence of the objectors was that the 1927 sales should be “lumped together” with the later sales from 1933 onwards, but that was an unsupported assertion.  The sale of the application land in 1927 was not part of a coherent development plan.  The plots of 64 Buxton Road and May Molly were substantially larger than those sold subsequently.  The effect of the subsequent development of the Belfield House Estate at a higher density from 1933 onwards was to render the covenants obsolete because the density of development that they envisaged, the purpose of which was to protect Belfield House and its grounds, was no longer sustainable.

54.            The objectors’ argument that to allow the present application would be the thin end of a wedge leading to similar development elsewhere on the Belfield House Estate was wrong.  The objectors suggested that the covenants on the application land formed part of a network of covenants of which the covenants taken over the 1933 plots also formed a part.  Consequently, the objectors argued, the discharge or modification of the covenants over the application land would be a precedent for the release of similar covenants over those 1933 plots.  Mr Bromilow submitted that, even if such a network of covenants had been intended, the covenants in the 1933 conveyances were no longer enforceable.  Therefore, subject only to planning permission, there was nothing to stop the owners of those houses from developing flats on their property.  The thin edge of the wedge argument was irrelevant.

55.             In support of this submission Mr Bromilow said that in order to be enforceable by successors in title of the original covenantee, it was necessary for a covenant to identify the land which it was intended to benefit.  It was not sufficient merely for the covenant to demonstrate an intention that successors in title of the original covenantee should take the benefit of the covenant.  In Crest Nicholson Residential (South) Ltd v McAllister (CA) [2004] 1 WLR 2409 at 2422 [33] Chadwick LJ said:

“In its later decision in the Federated Homes case [1980] 1 WLR 594 this court held the provisions of section 78 of the 1925 Act had made it unnecessary to state, in the conveyance, that the covenant was to be enforceable by persons deriving title under the covenantee or under his successors in title and the owner or occupier of the land intended to be benefited, or that the covenant was to run with the land intended to be benefited;  there is nothing in that case which suggests that it is no longer necessary that the land which is intended to be benefited should be so defined that it is easily ascertainable.  In my view, that requirement, identified in Marquess of Zetland v Driver [1939] Ch 1 remains a necessary condition for annexation.”

56.            Mr Bromilow submitted that the covenants that were taken in the post-1933 conveyances did not identify any land that was intended to take the benefit of the covenants.  He cited the example of 6 Belfield Park Drive and quoted from the covenant in the conveyance of that property dated 24 January 1933 that was recorded in the Office Copy Entry.  There was no area of land “so defined that it is easily ascertainable”; indeed no area of land was identified at all.  He referred to several similar examples in Belfield Park Drive, e.g. Nos. 2, 4, 5 and 7, where the restrictive covenants imposed on the sale failed to identify which land of the vendor it was intended to benefit.  The conveyance of Belfield House in 1937 imposed covenants on the purchaser but nowhere identified the “vendor’s property as a residential estate” that was to be benefited.  The objectors argued that one could have regard to extrinsic evidence when considering which land benefited from a restrictive covenant but, said Mr Bromilow, you could only rely on such evidence if there was an indication of the benefited land in the conveyance.  There had to be a reason for looking at the extrinsic evidence and there was no such reason in the case of the properties in Belfield Park Drive.

57.            Whereas the vendor, Mrs Patterson (nee Leith-Nelson), could have enforced personally against the covenantor, her successors in title could not do so in respect of what Mr Bromilow described as the post-1933 covenants.  The implication of this was clear; there were no enforceable restrictive covenants that would prevent the development of the remainder of the post-1933 Belfield House Estate as flats.  Such development would only be constrained by planning legislation.  The thin end of the wedge argument that was relied upon by the objectors did not apply.  Releasing the covenants under the present application would not set a precedent for similar releases elsewhere on the estate since the post-1933 covenants to which that estate was subject were no longer enforceable.

58.            Mr Bromilow next considered what was meant by “the character of the neighbourhood” in section 84(1)(a).  He submitted that the neighbourhood should not be restricted to the Belfield House Estate (as defined and agreed).  The market did not recognise it as a separate and distinct area.  Its boundary was arbitrary and did not reflect current development patterns.  For instance the boundary of the estate included the top part of Buxton Close but not the properties at the end; on the ground there was no physical distinction to be made between the two parts of the close.  Nor was it sensible to treat Buxton Road as a boundary of the neighbourhood.  Properties on the other side of that road were closer to the application land than other properties that were within the Belfield House Estate.  Mr Patrick took an area within a radius of 300 metres from Belfield House as representing the neighbourhood and Mr Bowden had accepted this.  Taking this larger area revealed that a number of material changes had occurred since the covenants were imposed in 1927, including the residential development of the estate itself, the conversion of South Belfield into four dwellings, including at least one flat, the development of May Molly as three dwellings and the construction of flats on the opposite side of Buxton Road.  Such changes in the locality had made the covenants obsolete.

59.            There were two further reasons why the covenants were obsolete under ground (a).  Firstly, Belfield House had itself been used, at least in part, as flats.  Mrs Patterson sold the house in February 1937 subject, inter alia, to a covenant against the use of the property as flats.  In June 1938 Mrs Patterson and the purchaser entered into a deed of release under which the premises:

“may henceforth be used for the purpose of not more than six separate residential flats of a high class character to be occupied by Tenants of like standing to those occupying the neighbouring houses on the Belfield Estate.”

The evidence showed that Belfield House had subsequently been used, in part, as (at least) two flats.  That was a material change in the neighbourhood under ground (a).  The deed of release had ensured that the intention of the covenants in 1927 that no part of the Belfield House Estate should be used as flats could no longer be achieved.

60.            Secondly, there had already been a breach of covenant 3, which prevented any building on the application land within 60 feet of the boundaries on the north and east of the site.  That breach comprised the construction of the single-storey building housing the swimming pool on the application land.  No objection had been taken to that breach and covenant 3 was now unenforceable to the extent that it had already been breached.  Mr Bromilow submitted that the existing breach was a circumstance of the case under ground (a) that rendered the covenant obsolete.  He relied upon Chatsworth’s Estates Company v Fewell [1931] Ch 224 in which Farwell J said at [231]:

“In some of the cases it is said that the [objectors] by their acts and omissions have impliedly waived performance of the covenants.  In other cases it is said that the [objectors], having acquiesced in past breaches cannot now enforce the covenants.  It is in all cases a question of degree.  It is in many ways analogous to the doctrine of estoppel, and I think it is a fair test to treat it in that way and ask, ‘have the [objectors] by their acts and omissions represented to the [applicant] that the covenants are no longer enforceable and that he is therefore entitled to use his house as a guest house?’ ”

Mr Bromilow said that in the present case the persons with the benefit of the covenants had acquiesced in the construction of the swimming pool.  The proposed residential development was not in a different category of use and, as a matter of fact and degree, the objectors could not now rely upon covenant 3 to prevent it.  That covenant was unenforceable and was therefore obsolete.

61.            Mr Bromilow said that all the facts that he had identified individually under ground (a) should also be considered cumulatively.  This showed that the covenants were obsolete and should be modified or discharged.

62.            Turning to ground (aa), Mr Bromilow first considered whether the proposed use of the application land was reasonable.  While the existence of planning permission for the proposed use was not determinative of this issue it had been held by the Tribunal to be very persuasive and in practice it would be exceptional for a use that had planning permission not to be held to be reasonable.  There was nothing in the facts of this application or on the evidence that made the proposed use exceptional in this regard and the point had not been put to the witnesses.

63.            Mr Bromilow accepted that the applicant’s argument that impeding the proposed user would be contrary to the public interest was not its strongest.  But the planning evidence had shown a public interest in ensuring that specific localities could provide adequate housing for the local population.  The objectors had said that there was little or no demand for flats in the locality and that there was already an adequate supply.  But the Regional Spatial Strategy Panel Report of 2007 stated that “Weymouth is highly constrained and cannot accommodate the identified demand” for housing.  The objectors’ assertion that there was no demand for flats was a function of the current market and economic climate.  It was probable that the demand for flats in the area could not be satisfied and so preventing the proposed development was contrary to the public interest.  There was a balance to be struck between the public interest in providing more flats and that of maintaining a system of private covenants.  In this case that balance came down – possibly only slightly – in favour of the applicant.

64.            Mr Bromilow then considered whether, by impeding the proposed use of the application land, the covenants secured to the objectors any practical benefits of substantial value or advantage to them.  He began his analysis by considering what alternative form of development could take place on the application land that would not breach the covenants.  He relied upon Re Fairclough Homes Limited’s Application [2004] Lands Tribunal LP/30/2001 (unreported) where the President said at [30]:

“In such a case as this, the provision it seems to me, operates in this way.  By preventing development that would have an adverse effect on the persons entitled to its benefit, the restriction may be said to secure practical benefits to them.  But if other development having adverse effects could be carried out without breaching the covenant, these practical benefits may not be of substantial value or advantage.  Whether they are of substantial value or advantage is likely to depend on the degree of probability of such other development being carried out and how bad, in comparison to the applicant’s scheme, the effects of that development would be.”

The application land was ripe for development and Mr Patrick’s supplementary evidence had shown that the most appropriate alternative form of development, in terms of its prospects for obtaining planning permission and its viability, would be a large single house on three or four storeys.  This alternative in effect formed the correct baseline against which to consider the impact of the proposed flats.

65.            Mr Bromilow divided the practical benefits claimed by the objectors into two groups: direct and indirect.  The latter he described as the indirect impact of the proposed development on the objectors’ properties by a change in the neighbourhood as a whole.  This included the thin edge of the wedge argument and Mr Bromilow reiterated the arguments that have already been recorded above.  In addition, Mr Bromilow referred to Re Willis’s application [1998] 76 P&CR 97 in which the Tribunal, P H Clarke FRICS, held that each application should be considered on its merits.  The particular facts pertaining to each property therefore needed to be taken into account.  In the present application 64 Buxton Road was a substantially larger plot than any of the others whose owners might seek to release similar covenants.  It was unique in this respect and could not be used as a precedent.  Access was onto Buxton Road and not onto Belfield Park Avenue or Belfield Park Drive.  Those two roads, as Mr Bowden noted, were likely to present greater access difficulties.  He dismissed the objectors’ arguments that the use of the application land as flats would affect the character of the neighbourhood by submitting, firstly, that the past and present use of parts of the Belfield House Estate as flats had not affected its character and, secondly, that the neighbourhood in the context should be considered more widely.  He concluded that any indirect impact of the development on the objectors’ properties would be minimal.

66.            The direct impacts identified by the objectors were examples of what the Tribunal, Erskine Simes QC, had described in Re Zopat Developments’ Application [1967] 18 P&CR 156 as “a case where the prospect terrifies while the reality will prove harmless”.  Mr Bromilow considered each of the direct impacts in turn.  There would be no traffic or car parking difficulties.  Mr Shale’s reference to the prospect of 30-40 cars on site was unrealistic.  Most of the flat occupiers were likely to be couples and the number of vehicles was likely to be much less than Mr Shale’s estimate.  The underground car park entrance and the vehicular access were both located well away from the objectors’ properties.  The objectors’ fear of tree removal was not an issue since the covenants did not protect them from this eventuality.  The proposed development was no more likely to cause problems in this respect than the (viable) alternative of building a single large house.  Mr Bromilow submitted that Mr Bowden’s photomontage was liable to mislead and was neither accurate nor fit for purpose.  The evidence had shown that the objectors’ fears about light pollution were unfounded.  Mr Bromilow accepted that there would be more windows in the new development but said that the increase in light would not be significant.  The objectors’ comments about external lighting were speculative and Mr Bowden had accepted that low level lighting might be installed.  It was accepted that Belfield House was already overlooked by other properties and that the yew tree in its garden acted as an effective screen against the proposed development.  There was no real evidence that the yew-tree was dying.  It was a long lived species and it should be assumed that it would remain in place.  That part of the garden of Belfield House between the yew tree and the application land was a shaded and relatively unattractive area.  The vegetable patch at 6 Belfield Park Drive was already in the shade of the existing trees.  Further planting (Leylandii) had been suggested.  Such a scheme of additional screening had been favoured by the Tribunal, P R Francis FRICS, in Re Coles’ Application [2004] LP/2/2003 (unreported).  Covenants could be given not to prune or lop the trees below a certain height.

67.            Mr Bromilow contended that the practical benefits afforded to the objectors by the continued existence of unmodified covenants through preventing the proposed development as compared to the realistic alternative of building a large single house, were at most minimal and certainly did not pass the “substantial” threshold test.

68.            Consideration of the application under ground (c) involved the same factors as its consideration under ground (aa).  If, as submitted, the objections to the application failed under ground (aa) it followed that they must also fail under ground (c).

69.            There was no reason for the Tribunal not to exercise its residual discretion in favour of the applicant and none had been advanced by the objectors.

70.            Mr Bevans for the applicant considered that no compensation was payable whereas Mr Bowden, in his supplementary expert report, had given ranges for the percentage diminution in the value of the objectors’ properties that were not supported by a reasoned explanation.  Mr Bromilow submitted that this was a matter for the Tribunal’s expertise.

The case for the objectors

Evidence

71.            Mr Bowden said that the covenants were not obsolete and that they afforded benefit to the objectors.  He thought that to allow flats on the application land would set a precedent elsewhere on the Belfield House Estate and that the proposed development would adversely affect both properties.  Mr Bowden described the houses in Belfield Park Drive as being some of the best quality residential properties in the Weymouth area.  The proposed development would only be some 10 metres from the boundary with No.6 and a similar distance from the boundary with Belfield House.  He said that the proximity of the new flats would deter prospective purchasers of both properties.

72.            In his supplemental report Mr Bowden quantified the “substantial” and “significant” effect on the value of No.6 and Belfield House respectively to which he had referred in his original report.  He said that the proposed development would diminish the value of No.6 by 15%-20% (£78,750 to £105,000 based upon his estimate of market value) and of Belfield House by 5%-10% (£187,500 to £250,000).

73.            Mr Bowden thought that a speculative developer might be interested in No.6 for the development of flats either on its own or in conjunction with an adjoining plot.  If the current application was successful Mr Bowden thought that the local planning authority might look favourably on such a proposal which, if implemented, might lead to further overlooking of Belfield House.  To allow the application would therefore be the thin end of the wedge.  Mr Bowden considered that 64 Buxton Road would support a single dwelling of more substantial proportions and quality than the existing building, but he did not accept Mr Patrick’s view that such a house would need to be on four storeys in order to benefit from the sea view.  Mr Bowden said that the site was heavily wooded, protected by a tree preservation order and that a developer would not go to such lengths for “a glimpse of the sea.”  He accepted that a new house on the application land would be more visible than the existing building but he thought that its impact would depend on its design and siting. 

74.            External lighting would have an effect on the amenity of No.6.  It was not uncommon for flats to have permanent and movement activated lighting, although such lighting would not necessarily be located at a high level on the proposed building.  Mr Bowden thought that the market had “little appetite” for flats and, in his opinion, Weymouth was over supplied with flats in all price ranges.

75.            There would be a substantial increase in traffic movements resulting from a development of 10 dwellings compared with the one on site at present.  This would result in noise nuisance from parking and deliveries.  Mr Bowden thought that the number of designated visitor car parking spaces was too low and that this would create problems, especially at the weekend.  This could have a significant impact upon 6 Belfield Park Drive.

76.            Mr Bowden produced a photomontage which showed the proposed development behind the existing tree screen.  This assumed the removal of branches that would otherwise touch or interfere with the new building.  This would leave gaps in the screen which he had tried to estimate.

77.            In response to the applicant’s late offer to replace the existing tree screen along the boundary with No.6, Mr Bowden said that he had taken advice from an independent expert, Mr Richard Burden, a chartered landscape architect.  Mr Burden said that the proposal to plant eight mature Leylandii trees had not included an estimate for the removal of existing tree stumps and roots.  Nor did it include an establishment and maintenance plan or details of how the trees would be supported.  Mr Burden said that it would be prudent to design a tree root protection barrier.  Mr Bowden added that the proposal would also need the permission of the local planning authority given that the application land was subject to a tree preservation order.

78.            Mr Grove said that he and his wife purchased Belfield House in 2004 since when they had undertaken extensive refurbishment of the property.  He understood that the height of the proposed new building would be 60 feet above the ground floor level of Belfield House.  He acknowledged that the effect of the new development would be limited when viewed from inside the house, but said that it would have a greater impact in the garden.  The garden sloped upwards from Belfield House apart from a level area close to the application land.  Mr Grove said that the new building would restrict light, interfere with views and privacy and would generate far more disturbance and noise through increased numbers of occupants and vehicular movements.  The extent of the construction works meant that some of the existing trees would have to be cut down while others would need to be lopped, in both cases reducing the screening effect of existing vegetation.  Mr Grove was concerned that the development would adversely affect the health of the trees along the boundary.  The yew tree in the garden of Belfield House, which was the single largest element in screening the development, was “suffering”.  On the lawn side of the tree about 50% of the branches were sagging.  It did not seem to be in a healthy condition.

79.            Mr Grove did not accept that the character of the locality had changed radically since the imposition of the covenants.  He believed that at the time the covenants were given the residential development of the Belfield House Estate was in contemplation.  The estate was developed from 1933 onwards with single detached dwellings in large gardens.  The covenants were still able to protect the amenity of the benefited properties and were not obsolete.

80.            The fact that the construction of the single storey swimming pool on the application land had infringed the distance restriction in covenant 3 did not mean that Mr Grove had acquiesced in the building of a multi-storey block of flats.  Mr Grove felt that, if allowed, the application would create a precedent that would lead to pressure for other flat developments elsewhere on the Belfield House Estate.

81.            Mr and Mrs Knight purchased 6 Belfield Park Drive in September 2005.  They did so after they knew that the planning application for the proposed development had been refused.  They were aware of the possibility of an appeal and that an alternative planning application could be made, but they thought that any successful application would be for a smaller building.  Their house faced southwards and directly overlooked the application land which it abutted along the length of its rear boundary.  Mr Knight said that the new development would have 23 windows in its northern elevation (facing No.6) of which 20 served habitable rooms.  With the possible exception of the ground floor windows these would all overlook the garden and house at No.6.  The main entrance to the flats was in that elevation.  He repeated Mr Grove’s concerns about the loss of light, views and privacy and the increase in noise and disturbance.  The majority of the habitable rooms at No.6 as well as the first floor sun deck would be directly and adversely affected by the proposals.  Mr Knight also agreed with Mr Grove about the continuing benefits of the covenants, the distinction between a breach of covenant 3 involving the existing swimming pool and the “very high sided and dominating building” that was now proposed and the precedent that would be set if the application was allowed.

82.            Mr Knight described the suggestion that a mature Leylandii tree screen could be placed along the boundary as “totally unacceptable”.  At present he enjoyed glimpses of the sea to the south.  The existing tree screen allowed some light to come through.  A Leylandii screen would form a solid wall blocking both light and the view.  It would also ruin the vegetable patch at the rear of his garden.  The proposed development would spoil the quiet and private ambience of the existing garden.

Submissions

83.            Mr Shale began his submissions by challenging Mr Bromilow’s argument that the post-1933 restrictive covenants, imposed on the sale of plots of the Belfield House Estate, were no longer enforceable.  He said that there was insufficient information upon which to base the conclusion that the benefited land under these covenants had not been identified. 

84.            For annexation to be effective the land intended to be benefited must be easily ascertainable, including by reference to extrinsic evidence.  Mr Bromilow’s case rested on Office Copy Entry extracts from some of the properties in Belfield Park Drive.  But this was not the whole story.  There needed to be a proper investigation based upon full disclosure, including of pre-registration documents of title.  There might be a building scheme in existence.  One could postulate other information that might be available.  For instance, reference to the benefited land in the preamble to a conveyance might be sufficient to defeat the applicant’s argument.  The applicant had only raised the issue very late in the day and Mr Bromilow might or might not be correct; there was no way of telling without more investigation and Mr Bromilow’s submissions based upon incomplete information should not be taken into account.

85.            Turning to the substantive issues Mr Shale submitted that the applicant’s case was without merit.  He dismissed as “ridiculous” the applicant’s arguments about the covenants being obsolete and the proposed development being in the public interest.  The onus was on the applicant to show that she had satisfied one or more of the grounds under section 84.  Under ground (a) she had to show that the covenants were obsolete and the Tribunal could not “begin to be satisfied” on the point.  The purpose of the covenants (with the acknowledged exception of restriction 4) was still achievable.  The covenants were not necessarily obsolete just because they were old.

86.            Mr Shale submitted that the proposed development was not a reasonable user of the application land notwithstanding that planning permission had been granted for it.  Such permission was evidence of reasonable user but not definitive of it.  The Belfield House Estate had been set out in plots with single detached houses, surrounded by gardens.  A large block of mock Georgian flats next to a unique Grade II* Georgian mansion was not reasonable.

87.            There was no substance to the applicant’s argument under ground (aa) that by impeding the proposed development the covenants were contrary to the public interest.  That public interest had been described by Mr Patrick as consisting of a planning policy which strongly favoured maximising the development of brownfield sites.  But the local planning authority had indicated no preference between developing the house as flats or as a single house.  In any event planning policy required a range of residential accommodation and not just flats (of which there was an over supply in Weymouth).  The applicant merely wanted to “pile them high and sell them cheap.”  Preventing that was not contrary to the public interest.

88.            Mr Shale then reviewed the evidence about the practical benefits which the objector said were secured to them by the restrictions.  He referred to the likely adverse effect of external lighting, which, although not specified, was likely to be very intrusive; the applicant’s underestimate of car parking requirements and the potential for much more noise and disturbance.  The late suggestion of a replacement Leylandii tree screen along the boundary with No.6 had been made in desperation.  It offered the prospect of a “black wall” instead of the “monstrous building” represented by the proposal.

89.             Although Belfield House was not so badly affected by the proposed development as No.6 its principal visual protection was afforded by a single yew tree that was potentially dying.  Mr Grove’s plans for the garden of Belfield House were still a work in progress and it was unfair to dismiss them and to claim that there would be no loss of amenity.

90.            Mr Bevans said there would be no diminution in the value of the objectors’ properties if the application was successful but this was wrong because he had not considered the thin edge of the wedge argument.  If the application land was developed it was difficult to see why other sites would not also be developed with flats, e.g. 6 Belfield Park Drive could be combined with neighbouring properties to form a viable development site (bearing in mind that numbers 4 and 7 Belfield Park Drive were currently on the market).  May Molly to the south of Belfield House might also be redeveloped.  The development of one or both of these sites could have a serious impact upon Belfield House while redevelopment of May Molly would seriously interfere with its sea view.

91.            The fact that objection had not been taken to the breach of restriction 3 when the swimming pool had been built on the application land could not be used to support the argument that that restriction was now obsolete.  The breach had been de minimis.  The swimming pool was a low level, single-storey building without windows.  It was unobtrusive.  Acquiescence in the construction of that building could not be said to condone the current proposal.  Mr Shale contested Mr Bromilow’s application of Chatsworth to the facts of the present application.  Mr Shale said that, as a question of degree, it could not reasonably be argued that acquiescence in the construction of a low level swimming pool could be taken as acquiescence to the demolition of the existing house and its replacement by a much larger block of flats.  The objectors had been reasonable in making a proposal that the applicant be allowed to build two houses on the application land but not nearer than 15 metres (49 ft) to the boundary with the objectors’ properties.  The fact that they had given an inch did not mean that they had to give a mile.

92.            Mr Shale submitted that the applicant’s reference to other authorities had been selective.  For instance Mr Bromilow had relied upon Truman to support the applicant’s argument that the covenants were obsolete.  But in that case Romer LJ had gone on to say at 272:

“I cannot see how, on any view, the covenant can be described as obsolete, because the object of the covenant is still capable of fulfilment, and the covenant still affords a real protection to those who are entitled to enforce it.”

The same was true in the present application.

93.            Mr Shale submitted that if the application were allowed it would have a substantial detrimental effect on the value of the objector’s properties.  But the objectors were not seeking compensation; this was not a money making exercise.  They wanted to preserve the character of the neighbourhood.  The expression “neighbourhood” was not defined.  Its extent depended upon what covenant the objector was seeking to enforce.  In the present application the neighbourhood could be limited and did not extend much beyond the agreed boundaries of the Belfield House Estate.  It might go a little to the south but the land on the other side of Buxton Road should not be included.

94.             The applicant had argued that it was relevant to consider what redevelopment could take place without breaching any of the covenants, per Fairclough.  They said that they could build a large single house.  But as Carnwath LJ said in Shephard v Turner [2006] EWCA Civ 8 at [40]:

“… in judging the effectiveness of the protection provided by the covenants, one is concerned with practicality, not theory.”

In practice no one would build a single house of the type described by Mr Patrick.

Conclusions

Ground (a)

95.            For the applicant to establish this ground I must be satisfied that, by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which I consider material, the restriction ought to be deemed obsolete.  The test of obsoleteness is whether the original purpose of the restriction can still be achieved, per Romer LJ in Truman (see paragraph 51 above).

96.            The purpose of the covenants is set out in broad terms in clause 3 of the 1927 conveyance:

“The Purchaser …. to benefit and protect the remaining parts of the Belfield House Estate … hereby covenants with the Vendor that she the Purchaser and her successors in title will at all times hereafter observe and perform the stipulations and regulations in relation to the property hereby assured which are contained in the First Schedule hereto”.

97.            Covenant 4 in the First Schedule, which required the prior approval of the vendor to any house or building, said that such approval should not be withheld:

“unless the erection of such house or building shall have the effect of materially obstructing views now enjoyed from other parts of the Vendor’s Belfield House Estate or lessening the amenity thereof by being unsightly or inappropriate to the site either in respect of position, size or value”.

98.            In my opinion the purpose of the covenants was to protect the remaining parts of the Belfield House Estate by preventing the material obstruction of its existing views and the lessening of its amenity.  The covenants under the 1927 conveyance achieved that purpose by ensuring that:

(i) only one house was built on the application land (covenant 3);

(ii) such a house would not be let out as flats (covenant 5) and could only be used for certain purposes (covenant 6); and

(iii) the vendor could prevent the construction of an unsightly or inappropriate house by reason of its position, size or shape (covenant 4)

The question to be determined under ground (a) is whether that purpose can still be achieved.

99.            The consequence of covenant 4 being spent is that the construction of a single dwelling house on the application land cannot now be prevented under the covenants even if it were to be unsightly, large or if it would obstruct the existing (1927) views from elsewhere on the Belfield House Estate (but otherwise satisfied the remaining restrictions imposed under the First Schedule).  Those remaining restrictions (3, 5 and 6) do not require the approval of the vendor and are not rendered obsolete by her death.  Covenant 3 is obsolete to the extent of the objectors agreement that two detached, two storey houses can be constructed on the application land provided these are no closer than 15m (approximately 50 feet) from the boundaries of their properties.  Subject to that concession, do these restrictions continue to fulfil their original purpose of preventing the material obstruction of the existing views from, and the lessening of the amenity of, the objectors’ properties?

100.         I consider firstly the applicant’s argument that there has been acquiescence to the breach of covenant 3 that occurred following the construction of the swimming pool within 60 feet of the boundaries of Belfield House and No.6 and that consequently the persons with the benefit of that covenant had waived its performance (at least to the extent of that breach).  The swimming pool is located approximately 26 feet (8m) from the boundary with No.6 and 31 feet (9.5m) from the boundary of Belfield House.  The proposed development will be a little further away from No.6 and marginally closer to Belfield House.  In Chatsworth it was said that consideration of this issue was, in all cases, a question of degree. I accept the objectors’ submission that acquiescence to the construction of a single storey low level extension of 64 Buxton Road to provide a swimming pool is different in kind and degree from the proposed development of a block of 10 flats with a height of 15m.  I do not consider that covenant 3 has been waived in respect of the proposed development.  The objectors have said that they would be prepared to accept the construction of two houses on the application land provided they do not encroach within 50 feet of their respective boundaries.  This does not mean that they would accept the proposed development provided it was located at or beyond that distance.

101.         It is impossible now to identify the views that were enjoyed from the other parts of the Belfield House Estate in 1927, although, from Mr Rickett’s comprehensive research on the history of the estate, it is possible to conclude that the locality was predominantly undeveloped and comprised Belfield House set in parkland grounds.  But what can be said is that there could have been no view of any sort from inside a house at 6 Belfield Park Drive because neither such a house nor such a road existed in 1927.  That is not true of Belfield House which had been built some 150 years before the 1927 Conveyance.  The copy of the 1929 Ordnance Plan in Mr Patrick’s report shows trees along its boundary with the application land to the west.  That same plan shows no trees along the boundary of what is now the application land and the site of 6 Belfield Park Drive.  Nor does the earlier plan of 1902.  The scale of those plans is small and lacking detail.  For instance, they do not show individual trees but only wooded areas.  Nevertheless they indicate that the site of 6 Belfield Park Drive, which was part of the Belfield House Estate, may have had an open aspect to the south in 1927 over what is now the application land.

102.         Whatever views existed in 1927 have been materially affected by the subsequent residential development of the Belfield House Estate and the neighbourhood generally and by the growth of trees over the last 85 years on both the application land and the objectors’ properties.  In my opinion the covenants no longer protect the views previously enjoyed from the Belfield House Estate at the time that the covenants were imposed and this part of their purpose is obsolete.

103.         Covenants 3, 5 and 6 also have the purpose of maintaining the amenity of the objectors’ properties.  This is achieved by limiting the built form of any development to a house, to be used as a private dwelling house but, specifically, not for flats.  The objectors have agreed that two houses rather than one can be built, but have not agreed to the construction of a purpose built block of flats or the use of any building (house) on the site as flats.

104.         The applicant makes three points regarding the proposed development of the application land as flats.  Firstly, she says that changes in the character of the neighbourhood have made the restrictions which prevent it obsolete.  The experts were in agreement about the extent of the “neighbourhood” for this purpose which is an area of radius 300 metres from Belfield House.  This includes an area south of Buxton Road that Mr Shale invites me to exclude.  I decline to do so.  Since the covenants were imposed the remaining part of the Belfield House Estate has been developed by detached dwelling houses.  The application land is the largest plot on the Belfield House Estate (contrary to Mr Patrick’s view I consider that the application land must have originally formed part of the estate, hence reference in the conveyance to the “remaining parts” of the estate).  Unlike part of the neighbouring area, for instance immediately opposite the site on the south side of Buxton Road, the Buxton House Estate is free of purpose built flats and, with some exceptions, from dwelling houses that have been converted into flats.

105.         The objectors argue that the development of the Belfield House Estate was contemplated by the vendor when she sold the application land in 1927.  The applicant contests this and says, correctly in my view, that there is no evidence that supports this assertion.  Plans of the development of the estate did not appear to enter the public domain before 1933.  But the development that has taken place on the remainder of the Belfield House Estate is consistent with the type of development envisaged for the application land in 1927, namely high quality single (detached) houses.  Whereas the character of the estate undoubtedly changed from 1933 onwards, in my opinion that change did not render the covenants obsolete and their purpose of protecting amenity can still be achieved. 

106.         Looking at the neighbourhood outside the Belfield House Estate there are examples of purpose built flats and other uses.  There is a block of three-storey flats opposite the application land on the south side of Buxton Road.  Buxton Road is a busy thoroughfare and forms an effective barrier between the land closer to the sea to the south and the Belfield House Estate to the north.  I do not accept that the development of flats on the other side of the road has made the covenants obsolete.  Those covenants were solely imposed to protect the views from and the amenity of the Belfield House Estate.  That Estate has a distinct character which the covenants can still help maintain and the construction of flats to the south has not altered this.

107.         Secondly, Mr Bromilow submits that the deed of release in June 1938 under which the vendor of Belfield House agreed to the use of the property for the purpose of not more than six separate residential flats, and the evidence of subsequent use as (at least) two flats, showed a material change in circumstances that rendered the covenants against the development of flats obsolete.  The 1938 deed of release relates to the conveyance a year earlier of an existing dwelling (Belfield House).  The release of the restriction against the use of that house as flats was qualified as to the nature of the flats (“of a high class character”) and the type of tenant who could occupy them (“of like standing to those occupying the neighbouring houses on the Belfield Estate”).  I do not accept that the qualified release of the restriction against the use of Belfield House as flats sets a precedent for the construction of a large purpose built block of 10 flats, with no equivalent qualifications, on the application land.  The purpose of the covenants was not to prevent the construction of flats per se; it was to protect and benefit the amenity of the remainder of the Belfield House Estate, including the objectors’ properties. The deed of release does not render that purpose impossible and therefore obsolete.

108.         Thirdly, Mr Bromilow submits that the covenants given by the purchasers of the remaining parts of the Belfield House Estate subsequent to the 1927 conveyance are not enforceable.  Other landowners on the estate are free to develop flats subject only to the grant of planning permission.  Consequently the covenants against the development and use of the application land as flats is obsolete since the purpose of those covenants was to protect the amenity of the estate from that type of development and use.  I am not persuaded by the evidence that this is the correct conclusion.  Although it is supported by the extracts from the Office Copy Entries that the applicant adduced, those extracts by themselves, as Mr Shale pointed out, are not necessarily conclusive and there may be further evidence, including extrinsic evidence, that might assist.  I do not accept that the possibility that some or all of the covenants entered into by purchasers of plots on the estate after 1927 are no longer enforceable renders the remaining covenants obsolete.

109.         I am satisfied that covenants 3, 5 and 6 are not obsolete and therefore the application fails under ground (a).

Ground (aa)

110.         I deal firstly under this ground with the objectors’ submission that the proposed development of the application land, which has detailed planning permission, is not a reasonable user of the land for private purposes.  It is well known following the decision in Re Bass Ltd’s Application (1973) 26 P&CR 156 that the existence of planning permission is very persuasive when considering whether a proposed user is reasonable.  In this case the planning permission was granted on appeal, although the reason the local planning authority refused the original outline application (contrary to the planning officer’s recommendation) was on highway safety grounds, which are not of direct concern to the objectors since the proposed vehicular access is from Buxton Road.  The grant of planning permission was in accordance with relevant planning policy (about which Mr Patrick provided comprehensive details).  In my opinion the proposed user is reasonable for the purposes of ground (aa).

111.         There is no dispute that the covenants impede this (reasonable) user.  The applicant argues that impeding that user is contrary to the public interest, a view that is supported by Mr Patrick’s exhaustive review of planning policy.  In my opinion the fact that the proposed development is consistent with the public interest in the ways described by Mr Patrick does not mean that to maintain the restrictions would be contrary to that interest.  Mr Patrick focused on the desirability of developing the application land with flats, emphasising the proposal’s conformity with relevant national, regional and local planning policies.  When considering whether the site could be developed with a single house (to show what development could take place without breaching the covenants) Mr Patrick sought the views of the local planning authority.  He asked them whether they were likely “to have any valid planning objection” to replacing the existing house with another new large house of similar size to the proposed block of flats and one which would have similar fenestration.  In his written response Mr Moscrop, a principal planning officer, said:

“…in principle I would be prepared to encourage an application for consideration in this instance…I consider that a single dwelling would have a very similar impact on its surroundings [to the proposed block of flats], but of course with considerably less family occupancy, particularly on upper floors.”

The apparent willingness of the local planning authority to not only consider but to “encourage” an application for a single dwelling house on the application land does not demonstrate any pressing public interest in the development of the site as flats.  In Re Collins’ Application (1975) 30 P&CR 527 at 531 the President of the Tribunal, Douglas Frank QC, said:

“In my view for an application to succeed on the grounds of public interest it must be shown that that interest is so important and immediate as to justify the serious interference with private rights and the sanctity of contract.  In my judgment this case comes nowhere near satisfying that test.” 

The applicant has failed to show that the importance and immediacy of any public interest in the development of the application land by a purpose built block of flats is such that the application should succeed under section 84(1A)(b) of the 1925 Act.

112.         The other case to which ground (aa) applies is set out in section 84(1A)(a) and requires the Tribunal to be satisfied that the restriction, in impeding the user, does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them.  In considering this aspect of the application I distinguish between the objectors’ properties.  In my opinion 6 Belfield Park Drive is likely to be more affected by the proposed development than Belfield House.  It is closer to it, its main habitable rooms face directly towards it, it has a longer boundary with it, the main entrance to the proposed flats is along the elevation that faces it, there are more windows (clear glazed habitable rooms) facing it, there is less tree screening protecting it and the surface car parking spaces and turning circle are nearer to it.  (This distinction is reflected in the percentage diminution in the value of the two properties put forward by Mr Bowden.)  In short I focus mainly, but not exclusively, upon the affect of the proposal upon No.6.  For the application to fail it is only necessary that one, not all, of the objectors can show that the restrictions secure to them substantial practical benefits.

113.         The applicant submits that in considering the issue of practical benefits it is necessary to have regard to what development could take place without breaching any of the restrictions.  It is suggested that the site could be redeveloped either as a single house with a footprint and volume similar to that of the proposed block of flats or as two houses, which, in principle and subject to conditions, is a form of development that the objectors are prepared to accept.  In Fairclough Homes the President said the degree of probability of other development being carried out that would not breach the restrictions might determine whether practical benefits were of substantial value or advantage. 

114.         The applicant argued that the development of the site by a single house of a similar size to the proposed block of flats was both acceptable in planning terms and economically viable.  The applicant produced a letter from the local planning authority showing that they would have no objection in principle to the construction of such a single large house (see paragraph 111 above).  The applicant’s view on viability was based upon a brief analysis which its author, Mr Bevans, described as a “broad brush” approach. It consisted of a summary of a rudimentary residual valuation without showing any of the calculations.  He said that the appraisal was a subjective exercise undertaken from the applicant’s point of view.  This meant, Mr Bevans said, that he had made no allowance for developer’s risk and profit because the property was already owned by the applicant.  Whatever else his calculation shows it is not the open market value of the site for development as a large single house; it is a subjective appraisal of whether it would be viable for the applicant to undertake such a development herself given that she already owns the land.  The exercise strikes me as cursory and I attach little weight to it.  Mr Bevans said that he had not been asked to assess the viability of constructing two (smaller) houses on the application land but considered that this “would obviously be viable”.  That remains an assertion that was unsupported by any evidence.

115.         I accept that the application land is suitable for residential redevelopment and that the value of the existing house is unlikely to exceed its development value.  But I am not persuaded by the evidence that, if the current application fails, the market would pursue the construction of a very large single house on the site.  In my opinion that prospect does not diminish the substantiality of any practical benefit enjoyed by the objectors.  The objectors have said that they would accept two “suitably designed detached single houses each no higher than two storeys and each to be erected no closer than 15 metres from the said boundaries”.  Such a development may therefore be taken as the baseline against which to gauge the practical benefits afforded by the restrictions.  Mr Patrick discussed the possibility of two houses being constructed on the application land but said that they would need to be four storeys tall rather than two, making them the same height as the proposed block of flats.  That would be contrary to the objectors’ concession.

116.         The proposed development would, in effect, double the size of the existing building in terms of height and volume.  (Mr Patrick acknowledged that it would be 7m higher “all the way across”.)  It would also increase the number of households from one to ten.  These are significant changes which have consequences in terms of their impact upon the amenity of neighbouring properties and the practical benefits that the restrictions afford to the objectors.  The aspects of amenity that would be affected (described by Mr Bromilow as the direct practical benefits) may be summarised as outlook and overlooking; increased domestic activity; increased traffic movements and light pollution.  I consider these impacts in turn.

117.          The impact of the proposed block of flats on the outlook from, and the overlooking of, the objectors’ properties depends upon the effectiveness of the tree screen that would surround it.  The report of the single joint arboricultural expert showed that the majority of the trees along the boundary were category 3 specimens, being of low quality and value.  Only three of the trees were said to be in good physiological condition.  The arboreal outlook is apparently not one of robust health and prolonged life.  Both parties submitted photomontages that purported to show the visual impact of the proposed development as it would appear from No.6. (No such photomontage was produced in respect of the view from Belfield House.)  They were both taken from the same vantage point (the first floor balcony).  For the applicant Mr Patrick shows the effect of planting 8 Leylandii trees along the boundary while for the objectors Mr Bowden shows the effect of the existing tree screen.  Both photomontages reflect subjective judgements about future appearance and are open to criticism.  Mr Bowden’s photo also reflects his view that several of the existing trees would have to be lopped or pruned in order for the development to proceed.  While this may be so it is speculative as to which branches of which trees might be affected.  I attribute little weight to the photomontages, preferring instead to rely upon my site inspection.  But in doing so I have had regard to Mr Phillips’ expert opinion that “facilitation pruning might be necessary to allow adequate clearance beneath the crowns for construction works to take place.”

118.         In my opinion the existing tree screen will not be entirely effective in hiding the proposed block of flats from No.6, either from the house or the garden.  The elevation of the proposed flats that would face No.6 contains the main entrance and there are 10 windows on the upper two storeys (the storeys that are less likely to be hidden by the tree screen) that would look towards the objector’s property.  Of these, two would contain obscure glazing to the communal staircase but the remaining 8 windows would be clear glazed habitable rooms (shown on the plans as bedrooms).  There would be a further 12 clear glazed windows facing No.6 on the lower two storeys.  I am satisfied that several of the habitable rooms in the proposed block of flats, albeit some 40m distant from No.6, would overlook the objectors’ property and in turn would affect the outlook from it.  

119.         Only three windows on the upper two storeys would face Belfield House and one of these (a bathroom) would have obscure glazing.  There would be a further four windows on the lower two floors.  The elevation fronting Belfield House would also be narrower (16m) compared with that fronting No.6 (29.5m).  The existing tree screen would, in my opinion, be more effective in shielding Belfield House from the proposed development, although not in respect of the upper parts of the garden (presently largely unused).  That screen depends significantly upon the yew tree (which is in the grounds of Belfield House and not on its boundary).  Despite the concerns expressed by the objector regarding the health of that tree there was no expert evidence to suggest that it was dying or diseased and there is no reason to suppose that it will not fulfil its screening role for the foreseeable future.

120.         There was prolonged discussion at the hearing about the likely identity and behaviour of the future residents of the proposed flats.  I do not think it is helpful to speculate on the point; there is simply no way of knowing the social demographic of any future occupants.  What is certain, however, is that significantly more people are likely to live in the new block than lived in the existing house or in any single house (or two houses) that might be built on the site in conformity with the remaining covenants (as agreed to be modified).  The concomitant of the increased numbers of people (and households) would be an increase in everyday activity both in the building and in the grounds.  While I accept that the use of communal grounds may be less noisy than the use of a household’s private garden, I think on balance that there is likely to be a noticeable effect on the quiet enjoyment of the objectors’ properties caused by this increased activity.

121.         There was also speculation about the number of vehicle movements that the proposed development would generate.  In his skeleton argument Mr Shale pre-supposed three cars per flat and suggested that the increase in the number of resident’s vehicles could be as high as 27.  That figure was not supported by the evidence generally and, importantly, was said to be an exaggeration by Mr Bowden, the objectors’ expert.  I think that the estimate of three cars per flat is fanciful and unhelpful.  Nevertheless I think it is axiomatic that the proposed development would generate a significant increase in vehicle movements compared with those from a single house.  The proposals show 10 allocated spaces in the lower ground car park (one per flat) with two designated spaces provided at surface level, close to the boundary with No.6 and with room to the west of the proposed building for further informal parking.  I accept the evidence of Mr Bowden that the provision of only two designated car parking spaces for visitors is low and that there are likely to be problems with visitor car parking on the site.  The main entrance to the proposed flats is on its northern elevation and the driveway continues to form a turning circle close to the boundary with No.6.  I agree with Mr Bowden that there would be a noticeable impact on the quiet enjoyment of No.6 arising from vehicles using this turning circle and the visitor spaces.  The effect of increased vehicular movements would not directly affect Belfield House to the same extent since such movements would be shielded by the proposed building.

122.         The final issue regarding amenity concerns possible light pollution.  The proposals do not specify what type of lighting is likely to be used either for security or for the illumination of footpaths.  Any problem would probably be with floodlighting and while the evidence suggests that it should be possible to provide a discreet low level (or suitable alternative) lighting system for the purposes of illumination it is not clear what arrangements would be needed for security purposes.  The objectors also argue that there will be light pollution from the large number of windows facing their properties, especially No.6.  Most of these windows are in bedrooms and the lights are unlikely to be turned on for extended periods (even allowing for the possible conversion of some of those rooms into studies) and any light source would probably be diffuse in any event.

123.         The applicant made a late proposal to replace the existing trees with a screen of 8 mature Leylandii trees along the boundary with No.6.  Mr Knight rejected this proposal as being totally unacceptable.  I do not consider that this proposal would be an appropriate screening solution.  A 12m high sheer evergreen tree screen of a uniform character with foliage down to low level would be very unattractive in this location and would detract from the objector’s enjoyment of his property.  The proposal had not been fully thought out or rigorously costed and I see little merit or advantage in it.

124.         By preventing the construction on the application land of a building other than a single dwelling house and by impeding the use of such a house as flats the restrictions do secure practical benefits to the objectors in terms of protecting the amenity and quiet enjoyment of their properties.  In my opinion these practical benefits, when taken together, are of substantial value or advantage to Mr and Mrs Knight, the owners of 6 Belfield Park Drive.  Mr Shale in his closing submissions said that the objectors at Belfield House were not so badly affected as those at No.6.  I agree for the reasons that I have given at paragraph 112 above.  But for the application to succeed it is necessary for the applicant to satisfy ground (aa) in respect of all the objections and, in my opinion, she has not done so.

125.         Having reached this conclusion it is not necessary for me to consider the objectors’ evidence and submissions concerning the thin end of the wedge argument in relation to ground (aa) or to consider the evidence regarding compensation.  In reaching my decision I have had regard to the provisions of section 84(1B) of the 1925 Act and I have taken account of all other material circumstances to which my attention was drawn at the hearing.

Ground (c) 

126.         I have found that the applicants have failed to satisfy the requirements of ground (aa) and having determined that the restrictions secure practical benefits of substantial value or advantage to the objectors at 6 Belfield Park Drive it follows that they would be injured by the proposed modification.  The application therefore fails under ground (c) also.

Conclusion

127.          The applicant has not succeeded in establishing any of the grounds relied upon in respect of covenants 3, 5 and 6 (covenant 4 now being spent and of no further application) and the application is therefore refused.  A letter on costs accompanies this decision, which will take effect when, but not until, the question of costs is decided.  The attention of the parties is drawn to paragraph 12.5 of the Practice Directions of the Lands Chamber of the Upper Tribunal dated 29 November 2010.

Dated 16 January 2012

 

A J Trott FRICS

 

Addendum to Costs

128. I have now received submissions on costs from both parties.  The objectors say that they were successful in their objections on all three grounds and that they should receive their costs.  The applicant makes “no submissions as to why there should be any departure from the usual rule on costs in the present case.”

129. Practice Direction 12.5(3) states that successful objectors will usually be awarded their costs unless they have acted unreasonably.  The objectors in this case have been successful and have not acted unreasonably.  The applicant shall therefore pay the objectors’ costs, such costs if not agreed to be the subject of a detailed assessment by the Registrar on the standard basis.

Dated 6 February 2012

 

A J Trott FRICS